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Civil · Reportable judgment

Arulmighu Nellukadai Mariamman Tirukkoil vs Tamilarasi (Dead) by Lrs.

Court
Supreme Court of India
Date
7 May 2019
Case No.
Civil Appeal No. 4666 of 2019
Result
Allowed
Bench
Abhay Manohar Sapre, Dinesh Maheshwari
Citation
[2019] 7 S.C.R. 361 : 2019 INSC 642
Supreme Court Reports [2019] 7 S.C.R. 361 : 2019 INSC 642
Headnote

Code of Civil Procedure, 1908 – s. 100 – Second appeal – Appellant-Plaintiff filed a civil suit against the original respondentdefendant for her eviction from the suit property – Trial court decreed the suit – First appellate Court affirmed the judgment of the trial court – However, in second appeal, the High Court set aside the impugned order and dismissed the suit filed by the appellant – On appeal, held: High Court failed to frame any substantial question of law arising in the case while admitting the appeal as required u/s. 100(4) CPC and further failed to decide the appeal as provided u/s.100(5) CPC – Instead, the High Court framed the questions for the first time while delivering the impugned judgment – The procedure and manner in which the High Court decided the second appeal was not in conformity with the mandatory procedure laid down in s.100 CPC – Thus, impugned judgment set aside – Case remanded to the High Court for deciding the second appeal afresh in accordance with law.

Allowing the appeal, the Court

HELD:1. The High Court failed to frame any substantial question of law arising in the case while admitting the appeal as required under Section 100 (4) of the Code of Civil Procedure, 1908 and further failed to decide the appeal as provided under Section 100 (5) of the CPC. [Para 11] [363-H; 364-A]

2. It is noticed that the High Court framed two substantial questions of law for the first time in the impugned judgment itself. In other words, what was required to be done by the High Court at the time of admission of the appeal to formulate a question of law after hearing the appellant as provided under Section 100 (4) of the CPC, but the High Court did it in the impugned judgment. Similarly, the High Court could have taken recourse to the powers conferred by proviso to Section 100 (5) of the CPC for framing any additional question of law at the time of final hearing of the appeal by assigning reasons for framing additional question, if it considered that any such question was involved. It was, however, not done. Instead, the High Court framed the questions for the first time while delivering the impugned judgment. [Para 12] [364-B-D]

Read the full headnote (3 more paragraphs)

3. The procedure and the manner in which the High Court decided the second appeal regardless of the fact whether it was allowed or dismissed cannot be countenanced. It is not in conformity with the mandatory procedure laid down in Section

100 of the CPC. [Para 13] [362-C]

4. In the light of the foregoing discussion, the impugned judgment cannot be sustained as it is not in conformity with the mandatory requirements of Section 100 of the CPC and hence calls for interference in this appeal. [Para 15] [369-A-B] Surat Singh (Dead) v. Siri Bhagwan & Ors. (2018) 4 SCC 562 : [2018] 1 SCR 1063 – relied on.

As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.

Full Judgment Text

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted. 2. This appeal is filed against the final judgment and order dated 30.09.2011 passed by the High Court of Judicature at Madras in Second Appeal No.365 of 2009 whereby the High Court allowed the said second appeal filed by the original respondent herein and set aside the judgment TAMILARASI (DEAD) BY LRS. [ABHAY MANOHAR SAPRE, J.] and decree dated 08.12.2008 of the Subordinate Judge, Nagapattinam in A.S. No.30/2008 and dismissed the suit filed by the appellant herein. 3. A few facts need mention hereinbelow
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